Citation Nr: 1600090
Decision Date: 01/04/16 Archive Date: 01/12/16
DOCKET NO. 08-27 447 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a heart condition (claimed as chest pain and irregular heartbeats).
ATTORNEY FOR THE BOARD
S. Spitzer, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1963 to April 1968. His DD Forms 214 show he had no foreign service.
This appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In August 2013 and October 2014, the Board remanded the current issue for further evidentiary development. The case is once again before the Board.
FINDING OF FACT
The preponderance of the probative evidence indicates that a chronic heart disability was not shown in service or for many years thereafter and is not related to service.
CONCLUSION OF LAW
The requirements for establishing service connection for a heart condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act
Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to
notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). Compliant VCAA notice was provided in August 2011. The case was readjudicated in May 2015.
In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records (STRs) and service personnel records are on file, as are various post-service medical records, VA examination reports, and lay statements.
The Board also notes that the actions requested in the prior remands have been undertaken to the extent possible. A VA examination was conducted and VA opinions and updated VA treatment records were obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).
The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with hypertensive heart disease. Accordingly, the first criterion for establishing service connection has been met. The question becomes whether this condition is related to service.
The Veteran's STRs contain a February 1965 report of side pains and a November 1966 report of chest pains lasting several months. The February 1968 Report of Medical Examination for separation reflects that the Veteran's heart was normal and his blood pressure was 136/80. On his Report of Medical History given at the same time, the Veteran denied having chest pains, palpitation or pounding heart, high or low blood pressure, or shortness of breath, although he responded affirmatively to other questions such as a history of mumps and venereal disease.
An August 1993 VA emergency room nursing assessment listed the Veteran's blood pressure as 116/112, and it was noted that the Veteran had hypertension. A May 2002 VA primary care note stated that the Veteran's hypertension has been treated with ace inhibitors since 1990, and that he has normal coronary function.
In August 2006, a Computerized Axial Tomography (CAT) scan in connection with a kidney stone showed cardiomegaly with murmur. A follow-up echocardiogram (ECG) was recommended. That ECG was performed in January 2007, and showed normal left ventricle size and systolic function with no regional wall motion abnormalities. Ejection fraction was 65 percent. Mild concentric left ventricular hypertrophy, type I diastolic dysfunction consistent with abnormality in left ventricle relaxation, and mild left atrial dilation were also noted.
In July 2009, an exercise stress test was performed. The Veteran achieved 8 metabolic equivalents (METs) and reached 94 percent of his age predicted heart rate.
In December 2010, the Veteran underwent another ECG, a myocardial perfusion study and an exercise stress test. The ECG showed a top normal left atrium, normal left ventricle wall thickness with normal left ventricle systolic contraction and an ejection fraction of 60-65 percent with trace mitral valve regurgitation and trace aortic insufficiency. The myocardial perfusion study noted mild dilation of the left ventricle, an ejection fraction of 57 percent and lateral wall ischemia. The stress test was reported as mildly positive for ischemia. Four days later, the Veteran underwent a cardiac catheterization study, the results of which were reported as normal.
In April 2013, another ECG reported results similar to the January 2007 ECG, finding no wall abnormalities with trace mitral valve regurgitation. An April 2013 stress test was negative for ischemia.
In January 2014, the Veteran was afforded a VA examination in connection with his claim. The Veteran reported that he was told that he had a heart murmur in service in 1963. A chest x-ray and ECG were performed, and both yielded normal findings. In February 2014, another VA examiner reviewed the claims file, including the January 2014 examination report, and opined that the Veteran had no active heart disease except hypertension.
In May 2015, the case was sent to another VA examiner to provide an addendum opinion on the findings of cardiomegaly, ventricular dilation, lateral wall ischemia, systolic murmur, and mitral valve regurgitation in the Veteran's treatment records. That examiner opined that the Veteran's hypertensive heart disease was caused by essential hypertension which developed after service. He stated that there is no evidence of the onset of hypertension during the Veteran's service, and noted that the Veteran's hypertension met the conditions for diagnosis in 1990. Addressing the findings of cardiomegaly on the August 2006 CT scan and mild left ventricle dilation on the December 2010 myocardial perfusion study, the examiner stated that those studies are not as sensitive for those conditions as echocardiograms. The 2007 and 2010 ECGs do not show evidence of cardiomegaly or ventricular dilation. The lateral wall ischemia found on the December 2010 myocardial perfusion study, he opined, is likely a false positive, given the normal cardiac catheterization study four days later. Finally, despite the notations of systolic murmur and mitral valve regurgitation, the examiner noted that the ECGs of record do not demonstrate any substantive valvular heart disease.
After review of the record, the Board finds that service connection for a heart disability is not warranted. While the Veteran does have a current diagnosis of hypertensive heart disease, the preponderance of the probative evidence indicates that the Veteran does not have a heart disability that is related to service.
At the outset, the Board notes that the probative evidence does not reflect that a heart condition was present in service or within one year following discharge from service. While the Veteran has claimed that he experienced an irregular heartbeat, chest pains, and a heart murmur during service, the Board notes that the Veteran denied heart and chest conditions on his report of medical history for separation, but reported other conditions. See AZ v. Shinseki, 731 Fed. Cir. 1303 (2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, no heart disability was treated during service or found on separation examination. The Board finds the service treatment records and the Veteran's separation Report of Medical History denying chest pains and irregular heart beat significantly more probative as to his health status in service than the Veteran's current recollections being provided more than 40 years after discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). As the preponderance of the probative evidence indicates that a heart condition was not shown in service or during the presumptive period, the Board turns to the question of whether there is a causal relationship between a heart condition and service.
The Board finds that the opinion of the May 2015 VA examiner, provided after reviewing the claims file, is highly probative as it reflects consideration of all relevant facts. The May 2015 VA examiner provided a detailed rationale for the conclusions reached. His conclusions are supported by the medical evidence of record, which note that the Veteran has been treated for hypertension since 1990, and the Veteran's treatment records, including ECGs, which do not reflect a diagnosis for a heart condition other than hypertensive heart disease. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).
The Board acknowledges the Veteran's belief that his current heart condition is related to service. However, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion on the cause of his heart condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of heart disabilities are matters not capable of lay observation, and require medical expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his heart condition is not competent medical evidence. The Board finds the opinion of the 2015 VA examiner to be significantly more probative than the Veteran's lay assertions.
In short, the preponderance of the probative evidence indicates that heart disease was not shown in service or for many years thereafter, and is not related to service. Accordingly, the preponderance of the evidence is against the claim, and service connection is denied.
In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
Entitlement to service connection for a heart condition is denied.
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs